Officer asking for consent before handing back driver license turns consensual encounter into a “stop” and consent invalid

Joe Bodiford's Blog

Horne v. State, 38 Fla. L. Weekly D1155a (Fla. 2d DCA May 24, 2013):  Officer stopped Hornse while she was walking, ostensibly as a consensual encounter.  She gave him her driver’s license, and a computer search returned no active warrants. At some point during the encounter, the deputy asked to conduct a search of Horne that would include reaching into her pockets. Horne consented to the search.  He found controlled substances in her jacket pocket.

She filed a motion to suppress, arguing that the officer’s failure to return her driver’s license after completing the warrants check converted a consensual encounter into a detention and that therefore she could not have freely consented to the search of her person.

The FLorida criminal appeal court noted that there was competent, substantial evidence in the record to support the trial court’s determination that Horne voluntarily gave her license to the officer, and as…

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LEOs looking in window of home after getting no answer at door violates 4th Amendment

Powell v. State38 Fla. L. Weekly D1140a (Fla. 1st DCA May 22, 2013):  Cops got tip from a partygoer that there was marijuana growing in a house.  They went to the house, knocked on door, go no answer.  They then moved to a close-by window, and looked in.  They saw marijuana plants, called a prosecutor, who told them to go in and secure the house.  REVERSED.  Motion to suppress should have been granted as looking in the window after getting no answer at the door was a violation of both the privacy and intrusion tests for determining a 4th Amendment violation.  The court held, in pertinent part:

Fourth Amendment analysis has evolved into two seemingly different, but somewhat interrelated, methods of identifying protectable interests.  The more recently adopted formulation, also known at the Katz test, focuses on a person’s expectation of privacy. Katz v. United States, 389 U.S. 347, 351 (1967).

A method of older lineage, known as the intrusion or trespassory test, focuses on whether government agents engaged in an “unauthorized physical penetration” into a constitutionally protected area.  Silverman v. United States, 365 U.S. 505, 509 (1961);see also Olmstead v. United States, 277 U.S. 438, 466 (1928), overruled in part by Katz, 398 U.S. 347 (1967).

. . .

Under the privacy and intrusion approaches, the home and its curtilage — the area closely surrounding the home — are constitutionally protected. Because it is appurtenant to the home, the curtilage is entitled to the same Fourth Amendment protection as the area within the home. See California v. Ciraolo, 476 U.S. 207, 212 (1986); see also Pinyan v. State, 523 So. 2d 718, 720 (Fla. 1st DCA 1988) (“It is well settled that the Fourth Amendment protection of the home extends to the curtilage of a residence.”). This is so because the curtilage is “an area intimately linked to the home, both physically and psychologically,” thereby entitling it to protection from unreasonable searches. Ciraolo, 476 U.S. at 212-13. Under the privacy approach, the Supreme Court has noted that “society accepts as reasonable citizens’ expectations of privacy in the area immediately surrounding their homes.” Ciraolo, 476 U.S. 207 at 221. Under the intrusion approach, the constitutional protection of the curtilage pre-datesKatz, as mentioned in Olmstead. 277 U.S. at 466 (“an actual physical invasion of his house ‘or curtilage’ for the purpose of making a seizure” violates Fourth Amendment).

 .  .  .

The question then becomes whether the officers looking into the window violated either the privacy or intrusion tests.  We apply the latter first, it being the more straightforward.  Under the intrusion approach, we query whether the police officers physically “occupied private property for the purpose of obtaining information” without express or implied permission to do so, thereby intruding into an area protected by the Fourth Amendment. Jones, 132 S. Ct. at 949. Here, the deputies initially followed established norms: they approached the front door via the pathway, took one step up, and knocked. Receiving no response, a private citizen would have had no choice but to depart immediately via the pathway. Indeed, Deputy Tysall acknowledged that if someone inside the home had told the officers to go away, they would have done so after asking if the occupants were okay.

The deputies, however, deviated from established norms by entering upon that portion of the property directly in front of the window. Nothing in their testimony or the record establishes any license to do that. The officers had to step off the front door step, move two feet to the left, and position themselves directly in front of the window, their faces no more than a foot away. At that point they were virtually within the home without breaking its close. Because they physically entered a part of the curtilage where they had no right to be for the purpose of gaining information, the intrusion test is met.

. . .

[W]e conclude that the officers’ intrusion into the curtilage of the mobile home, on a part of the property on which they had no legal right to be, and peering through a window a hand’s length away at a sharp angle into an otherwise private part of the home, constituted a search in violation of the Fourth Amendment under both the expectation of privacy test and the intrusion test. Either way, this entry into the protected private space of the home was an improper attempt to verify an anonymous tip. Morsman, 394 So. 2d at 410 (“The shortcut taken by skipping the application for a warrant was unjustified and violated defendant’s Fourth Amendment right to be free from an unreasonable search and seizure.”). Under the exclusionary rule, we are compelled to reverse the convictions, which were based entirely on evidence obtained due to the unlawful search. Art. I, § 12, Fla. Const. (“Articles or information obtained in violation of this right shall not be admissible in evidence if such articles or information would be inadmissible under decisions of the United States Supreme Court construing the 4th Amendment to the United States Constitution.”); see also Wong Sun v. United States, 371 U.S. 471, 484-85, 487-88 (1963) (evidence obtained by Fourth Amendment violation excluded as “fruit of the poisonous tree”).

Excellent opinion for protection of personal rights.

Officer’s instruction to “stand by” is a detention, consent to search given after that is tainted and involuntary

Neely v. State, 38 Fla. L. Weekly D1060a (Fla. 2d DCA May 15, 2013):  The undisputed facts appear as follows:

Officer Hilton was alerted to a man slumped over in a van in the driveway of a residence. He responded to the site and saw Mr. Neeley slumped behind the wheel with two doors wide open. He determined that Mr. Neeley was all right and not intoxicated. Officer Hilton directed Mr. Neeley to “stand by” and knocked on the front door of the residence, which belonged to Ms. Clancy, Mr. Neeley’s ex-wife. The van was hers. After speaking with Ms. Clancy, Officer Hilton returned to the driveway. He searched Mr. Neeley and discovered eight oxycodone pills. Ms. Clancy found the van keys in her purse before Officer Hilton removed Mr. Neeley from the scene.

The testimony of Officer Hilton and that of Ms. Clancy conflict as we delve further. Officer Hilton claimed that Ms. Clancy told him that Mr. Neeley did not have her permission to be in her van and that she was concerned about where her keys were. He said that when he searched Mr. Neeley, he believed he had probable cause to arrest him for trespass to a conveyance and that he was searching for the car keys. He claimed that he asked if he could search Mr. Neeley. Mr. Neeley only lifted his arms several inches, which Officer Hilton interpreted as consent.

Ms. Clancy testified that when she answered Officer Hilton’s knock on her door, she told him that the last time she saw Mr. Neeley he was on the couch, that it was fine with her that Mr. Neeley was sleeping in her van, and that she left the van unlocked. She testified that when she opened the door to Officer Hilton, she saw Mr. Neeley standing outside, handcuffed. She said that Officer Hilton told her he had found medication in Mr. Neeley’s pocket and asked her if she took medication and what type.

After a hearing, the trial court denied Mr. Neeley’s motion to suppress. The court found that at no time did Officer Hilton have probable cause to arrest him for trespass, but that the search was legal because there was no unlawful detention and Mr. Neeley consented to the search. The trial court concluded that Officer Hilton’s “asking” Mr. Neeley to “stand by” did not “put[ ] him in custody in any way” and that “he could have walked away if he wanted.” The court noted but discounted Ms. Clancy’s testimony that Mr. Neeley was handcuffed when she answered the door.

The Florida criminal appeals court held even if Mr. Neeley consented to the search, such consent was invalid because Officer Hilton illegally detained him before consent.  Consent given after illegal police activity is presumptively tainted and rendered involuntary. (citations omitted)  Officer Hilton’s instruction to Mr. Neeley to “stand by” was a detention because a reasonable person under the circumstances would not feel free to leave or to disregard the instruction. (citations omitted)  Additionally, Officer Hilton illegally detained Mr. Neeley after he returned to the van by instructing him to step out of the vehicle. (citations omitted) Therfore, the court held,  Mr. Neeley’s “consent” was tainted and involuntary.  Conviction reversed.


Statement “I don’t even have no money to call a lawyer” is not a waiver of the right to counsel during questioning

Chavers v. State, 38 Fla. L. Weekly D1035a (Fla. 1st DCA May 9, 2013):  Defendant was arrested on a murder charge.  Cops read him his rights under Miranda, and the following conversation occurred:

Officer: So I want to go over your Miranda warnings. That means you have the right to remain silent, okay?

 Appellant: Uh-huh.

 Q: Anything you say can and will be used against you in a court of law.

 A: Uh-huh.

 Q: You have the right to talk to a lawyer and have him or her present with you while you’re being questioned.

 A: Uh-huh.

 Q: Okay. If you cannot afford to hire a lawyer, one will be appointed to represent you before any further questioning, if you wish. If you decide to answer questions now, without your lawyer being present, you have the right to change your mind at any time and request a lawyer be present before any further questioning. So if you don’t like the way it’s going, you can say, whoa, [detective].

 A: I don’t have no lawyer, so —

 Q: You — –

 A: I don’t even have no money to call a lawyer.

 Q: Okay. But, understand, you know, you could have one, but — do you have any questions about these? Do you understand them?

 A: Uh-huh.

 Q: You do? Do you understand the rights? Could I get an initial right there? And if you want to talk to me now.

Chavers then made statements about the murder that were used against him at trial.  Prior to trial, however, he made a motion to suppress the statements, saying that they were made in violation of the the right to have counsel present during questioning (“interrogation”).  The suppression motion was denied by the Florida criminal court judge.

The Florida criminal trial court’s partial denial of the motion to suppress Chavers’ statement to law enforcement was reversed because Chavers’ right to the presence of counsel for the interrogation was not validly waived.  “[A]n ambiguous waiver must be clarified before initial questioning.”  Alvarez v. State, 15 So. 3d at 745. “Prior to obtaining an unambiguous and unequivocal waiver, a duty rests with the interrogating officer to clarify any ambiguity before beginning general interrogation.”  U.S. v. Rodriguez, 518 F. 3d 1072, 1080 (9th Cir. 2008) (considering waiver of right to remain silent when officer inquired if suspect “wished to speak to him” and suspect responded “I’m good for tonight.”).  See also Miles v. State, 60 So. 3d 447, 451 (Fla. 1st DCA 2011) (“If the suspect makes an equivocal request to remain silent before waiving his Miranda rights, the police must clarify the suspect’s intent before continuing the interrogation.”)

In this case, the Florida appeal court found that the State did not meet its “heavy burden” to show a knowing and intelligent waiver of Chavers’ right to appointed counsel because Chavers’ statement that he did not have the money for a lawyer indicated that he did not intelligently understand he had the right to appointed counsel even if he could not afford one.  See Martinez v. State, 564 So. 2d 1071 (Fla. 1990); Fields v. State, 402 So. 2d 46 (Fla. 1st DCA 1981). Because the officer’s response to Appellant’s statement did not clarify Appellant’s right to the presence of counsel regardless of his lack of financial resources, Appellant’s waiver of that right was not valid.  Accordingly, Appellant’s subsequent statements placing him in the victim’s vehicle on the evening in question and other incriminating statements should have been suppressed.

Defendant cannot waive statute of limitations in Florida as to lesser offenses

Cartegena v. State, 38 Fla. L. Weekly D1017D (Fla. 4th DCA May 8, 2013):  HELD:  Where a defendant has asserted the statute of  limitations to prevent prosecution of some old (and time-barred) charged crimes arising out of the same criminal episode as another old charge (that is not time-barred) in order to avoid prosecution for those old crimes, he cannot then assert the statute of limitations to secure the possibility of reducing his punishment as to crimes for which he still is being prosecuted.

Cartegena was charged in 2008 with a 1996 armed sexual battery and armed burglary.  Prior to trial, he moved to dismiss the armed burglary based on a violation of the statute of limitations (Fla. Stat. 775.15).  He prevailed, and went to trial only on the armed sexual battery charge.  At his subsequent trial on the armed sexual battery charge, the defendant sought to waive his statute of limitations defenses as to the lesser-included offenses for the armed sexual battery so as to be entitled to have the jury instructed on these lesser offenses. The trial court refused to accept the waiver, reasoning that, having successfully asserted a statute of limitations defense to obtain the dismissal of the one charge, the defendant could not now waive his statute of limitations defense as to the lesser-included offenses of the other charge. The jury found the defendant guilty of the only offense put before it — armed sexual battery.

First, the Florida appeals court held that Cartegena did not properly waive any statute of limitations defense to the lesser-included charge (that it was done knowingly and voluntarily, with consultation of counsel, and did not contravene public policy).  The Florida criminal appeal court found that a “maneuver” of “on again, off again” pleading and waiver of the statute of limitations would contravene public policy reasons motivating the statute.  Those public policy reasons are that “the purpose of a statute of limitations is to limit exposure to criminal prosecution to a certain fixed period of time following the occurrence of those acts the legislature has decided to punish by criminal sanctions. Such a limitation is designed to protect individuals from having to defend themselves against charges when the basic facts may have become obscured by the passage of time and to minimize the danger of official punishment because of acts in the far-distant past” (citing Toussie v. United States, 397 U.S. 112, 114-15, 90 S.Ct. 860, 25 L.Ed.2d 156 (1970)).

Secondly, the district court of appeal held that “[w]here the defendant may still be prosecuted for acts arising out of the same episode which are not barred by a statute of limitations, the statute does not provide protection to the defendant in his defense. Instead, it operates simply to reduce his exposure to punishment for all relevant crimes. Because it is not a constitutional violation, we conclude that the trial court did not err in refusing the appellant’s waiver.”

In short, what the court is saying is that where certain crimes are too old to be prosecuted any more, the defendant may avail him- or herself of  the statute of limitations and avoid prosecution for those old charges.  However, where there is a remaining charge that is not time-barred, the defendant cannot then waive the protection of statute of limitations to try to get the jury to convict of lesser offenses that, ordinarily, would be too old to be prosecuted.

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